The connections between ethics reform, lobbying, free speech, and markets

Over at the Missouri Record, Dave Roland criticizes the ethics bill SB 844 in front of the Missouri Senate, presenting five specific arguments as to why the bill is constitutionally untenable. He has this to say on the subject of the bill’s provisions to expand the scope and breadth of lobbyist registration and reporting requirements:

The current version of SB 844 would also expand section 105.470’s definition of “legislative lobbyist” to include “any natural person who acts for the purpose of attempting to influence the taking, passage, amendment, delay or defeat of any official action on any bill, resolution, amendment, nomination, appointment, report or any other action or any other matter pending or proposed in a legislative committee in either house of the general assembly, or in any matter which may be [italics added] the subject of action by the general assembly and in connection with such activity… attempts to influence any elected official other than an elected official who represents the legislative district where the person resides.” Under the currently-existing section 105.473, anyone who meets the definition of a lobbyist is required to file a registration form, pay a registration fee, and on a continuing basis provide to the designated authorities a significant array of information about the resources expended in their efforts to communicate with elected officials.  The law treats a lobbyist’s failure to register with the state or keep current on the required reports as a criminal offense.

The Missouri Constitution, states that “every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject” (Article I, section 8), establishes the will of the people themselves to be the basis of all proper governmental authority (Article I, section 1), and guarantees the right to “apply to those invested with the power of government for redress of grievances” (Article I, section 9).  By classifying as a “lobbyist” any person who expresses their political ideas to a legislator other than the one elected to represent them, the General Assembly would unconstitutionally stifle political speech and erect barriers that would prevent the people of this state from making their opinions known to those vested with the powers of government.

The impacts of this kind of legislation are real and represent a serious threat to the channels of communication between people and their government. I argue that the real problem with lobbyists is not that they exist, but rather that the cost of lobbying is too high. When the cost of communicating with your elected representatives is relatively high, only powerful vested interests are able to afford lobbying services. When the cost of this communication is relatively low, powerful vested interests have to compete for access and even privileged access becomes less meaningful as politicians gain leverage from being able to choose from more variable coalitions in a dynamic political landscape. In more direct terms, the cheaper it is to be a lobbyist, the more democratic the results of the political process. Lobbying in a sense is the act of proxying speech for dollars and dollars for votes; when votes are cheaper and the population is large and more heterogenous the influence of any single political coalition faces very real limits from competition.

And there is empirical evidence these kind of requirements exert a stifling effect on free speech. University of Missouri-Columbia economist Jeffrey Milyo describes the real ways of in a recent paper published through the Institute for Justice, “Mowing Down the Grassroots: How Grassroots Loobying Disclosure Suppresses Political Participation“:

However, 
as 
this 
report 
documents, 
sweeping 
lobbying 
laws
 in 
36
 states
  to 
strangle
 grassroots
 movements
 in 
red
 tape 
and 
bureaucratic 
regulation.
Twenty‐two
 states
 explicitly 
include 
grassroots
 lobbying 
in
 the
 definition 
of
 lobbying,
 while
 another 
14 
consider
 any 
attempt
 to 
influence 
public 
policy 
to 
be
lobbying,
 as
 long
 as 
a 
certain 
amount 
is 
spent. 

Thus, 
such 
common 
activities 
as
 publishing 
an 
open 
letter, 
organizing 
a 
demonstration 
or 
distributing 
flyers 
can
 trigger 
regulation 
and 
force 
organizers 
to 
register
 with
 the
 state
 and
 file
 detailed
 reports on
 their 
activities,
 as
 well
 as 
the 
identities 
of 
supporters.
  These regulations
 raise
 the 
costs 
of
 political
 activity
 and 
set
 legal 
traps 
for
 unsuspecting
 citizens,
 thus
 making 
it
 more 
difficult
 for
 ordinary 
citizens 
to
 participate 
in 
politics—all 
with 
little 
or 
no 
benefit 
to 
the
 public. 

As 
this 
report
 finds:

  • Lobbying 
regulations
 are
 not 
intended 
to
 be
 understood
 by
 ordinary
 people.

 The
 first
 paragraph 
of 
Massachusetts’
 new 
lobbying 
law, 
for 
example, 
scored
 0.9
 on 
a 
100‐point 
scale 
in 
a 
readability 
test. 

Going 
by 
such 
tests, 
it 
would 
take
 34
 years 
of 
formal 
education
 to 
understand
 that 
paragraph; 
not 
even 
a 
doctorate
 from 
MIT 
or
 Harvard 
would
 be 
enough.
  • The 
red tape 
would‐be
 grassroots 
lobbyists 
must 
navigate 
to 
properly 
disclose
 activities 
and 
financial 
support 
is 
complex 
and 
burdensome. 

In 
previous
    research,
 ordinary
 citizens
 who 
tried 
to 
fill 
out 
similar 
forms 
correctly
 completed
 only
 about
 40 
percent
 of 
tasks.
  • Running 
afoul
 of 
these 
regulations
 could
 bring
 stiff
 penalties,
 including
 thousands 
in 
civil 
fines
 and
 in
 some
 states 
criminal
 penalties.

 In
 New York,
 the
    maximum 
criminal
 penalty
 is 
$5,000 
and 
four 
years 
in 
jail, 
equivalent 
to 
arson
 or 
riot;
 in
 Alabama, 
it
 is
 $30,000 
and
 20
 years,
 equivalent 
to
 kidnapping.
  • The 
public 
likely
 gains 
little 
from
 these 
regulations. 

Previous
 research
 suggests few
 will 
seek
 out 
the 
disclosed
 information, 
but 
many 
will 
be 
deterred 
political 
activity 
by 
the 
public 
disclosure 
of 
their 
personal 
information.
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One thought on “The connections between ethics reform, lobbying, free speech, and markets

  1. […] This post was mentioned on Twitter by eapenthampy, eapenthampy. eapenthampy said: why increasing MO lobbyist registration and reporting requirements crushes grassroots political efforts http://bit.ly/9sZRTb #policy […]

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